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FILED: NEW YORK COUNTY CLERK 08/03/2021 03:55 PM INDEX NO. 152309/2021 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/03/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----------------------------------------------------------------------X MARUCA VARGAS, Index No.: 152309/2021 COMPLAINT Plaintiff, -against- CITY OF NEW YORK and THE ADMINISTRATION FOR CHILDREN’S SERVICES Defendant. ----------------------------------------------------------------------X Plaintiff, MARUCA VARGAS, (“Plaintiff”), by and through attorneys, Lawrence Spasojevich, Esq. of Aidala, Bertuna & Kamins P.C., file this Complaint against Defendants, CITY OF NEW YORK and THE ADMINISTRATION FOR CHILDREN’S SERVICES, and state as follows: INTRODUCTION 1. Plaintiff alleges that, pursuant to the New York City Administrative Code § 8-101 et. seq. (hereinafter “New York City Human Rights Law”, “NYCHRL”), §8-107(10), and §8-502(a), he is entitled to recover from the Defendants: (1) compensatory damages; (2) punitive damages; (3) prejudgment and post-judgment interest; and (4) attorneys' fees and costs. PARTIES 2. Plaintiff was a resident of New York County, New York. 3. At all times material hereto, Plaintiff was an “individual” within the meaning of the NYCHRL. 4. At all times material hereto, Plaintiff is a “person” within the meaning of the NYCHRL and protected against discrimination on sex and sexual orientation. 5. Plaintiff is female and identifies as a woman. 1 of 7 FILED: NEW YORK COUNTY CLERK 08/03/2021 03:55 PM INDEX NO. 152309/2021 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/03/2021 6. Plaintiff is heterosexual. 7. Defendant City of New York (“City”) was, and is, a municipal entity created and authorized under the laws of the State of New York. It is authorized by law to maintain and ultimately is responsible for the New York City Administration for Children’s Services and is an “employer” for the purposes of the NYCHRL. 8. Defendant Administration for Children’s Services (“ACS”) was, and is, a municipal agency of the City responsible for protecting the safety and welfare of all children in New York City and is an “employer” for the purposes of the NYCHRL. STATEMENT OF FACTS 9. The within Complaint is based upon violations of the NYCHRL by the Defendant and/or agents or employees of Defendants and Defendants are liable due to their actions and/or inactions against the Plaintiff and/or the supervisory role of the agents or employees of Defendant. 10. Plaintiff, as detailed herein, was subjected to repeated instances of sexual harassment and forced to work in a hostile, abusive, and offensive work environment which caused Plaintiff to suffer signification embarrassment, stress, pain, suffering, and mental anguish. 11. During the course of her employment with Defendants, Plaintiff was subjected to multiple incidents of unprofessional, abusive, offensive, and sexually harassing conduct perpetuated by her supervisor, Betty Durham, beginning in September 2018, by Ms. Durham simulating the act of cunniling*s during case reviews with Plaintiff in an effort to “entice” Plaintiff. 12. After the first incident of Ms. Durham’s sexually harassing conduct, Plaintiff reported Ms. Durham’s conduct to Child Protective Service (hereinafter “CPS”) Brown and told CPS Brown that Plaintiff believed Ms. Durham was “makin a pass” at Plaintiff. 2 2 of 7 FILED: NEW YORK COUNTY CLERK 08/03/2021 03:55 PM INDEX NO. 152309/2021 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/03/2021 13. CPS Brown responded to Plaintiff’s complaint by stating that there was rumors that Ms. Durham does not have a boyfriend, that Ms. Durham does not have a partner, and that Ms. Durham was a lesbian. 14. Upon information and belief, Ms. Durham is a lesbian. 15. The following day after the first occurance, Plaintiff appeared for another case management session with Ms. Durham during which Ms. Durham began to again simulate cunniling*s with her mouth. 16. After this second occurrence, Plaintiff told Ms. Durham that her conduct was making her uncomfortable; Ms. Durham did not respond verbally but stopped simulating cunniling*s. 17. However, Ms. Durham’s penchant for sexually harassing Plaintiff by simulating cunniling*s did not cease after the second occurance when Plaintiff complained; but continued over a period of five (5) months and occurring approximately ten (10) more times. 18. In or about January 2019 and in an effort to convince Ms. Durham to stop, Plaintiff emailed Ms. Durham and asked her to keep “it clean”. 19. Plaintiff also included on the email CPS Brown and Farah Lawrence. 20. After Plaintiff sent the above referenced email, Ms. Durham began a campaign to intimidating tactics; specifically by stopping at Plaintiff’s cublicle and staring at her for approximately one (1) minute. 21. As a direct and proximate result of Defendants’ actions and the actions of Defendants’ agents and/or employees as detailed above, the Plaintiff was caused to suffer emotional and physical pain and suffering,physical and emotion stress; and, in some instances severe emotional trauma, depression, illness, hopelessness and anxiety, loss of confidence, self-esteem and self- 3 3 of 7 FILED: NEW YORK COUNTY CLERK 08/03/2021 03:55 PM INDEX NO. 152309/2021 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/03/2021 worth, and other irreparable harm resulting from the strain of employment controversies cause by Defendants’ and/or Defendants’ agents and/or employees. 22. As a result of Ms. Durham’s actions and/or their supervisory role with Defendant and/or Defendant’s inaction, Plaintiff felt extremely humiliated, degraded, victimized, embarrassed, emotionally distressed, extremely distraught, and intimidated. 23. Ms. Durham was in a supervisory position over Plaintiff and, therefore, Defendants are strictly liable for the damages incurred to Plaintiff. 24. As a result of the discriminatory and intolerable treatment of Plaintiff by Defendants and/or agents and/or employees of Defendants, she has suffered severe emotional distress and physical ailments. 25. Plaintiff has been substantially damaged by the Defendants’ and/or Defendants’ agents’ and/or employees’ wrongful conduct. COUNT 1 [Violation of the NYCHRL] 26. Plaintiff re-alleges and re-avers each and every allegation and statement contained in paragraphs "l" through "25” of this Complaint as if fully set forth herein. 27. The NYCHRL applies to the Defendants and protects the Plaintiff. 28. The NYCHRL prohibits discrimination based upon an employees’ sex, gender, and sexual orientation. 29. The NYCHRL prohibits sexual harassment in the workplace. 30. Defendants, pursuant to their policy and practices, discriminated against and allowed to foster a hostile work environment on the basis of Plaintiff’s sex, gender, and sexual orientation by and through the acts of Defendants’ agents, employees, and/or supervisory staff. 4 4 of 7 FILED: NEW YORK COUNTY CLERK 08/03/2021 03:55 PM INDEX NO. 152309/2021 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/03/2021 31. Ms. Durham was in a supervisory position over Plaintiff and, therefore, Defendants arestrictly liable for the damages incurred to Plaintiff. 32. The forgoing conduct, as alleged, constitutes a willful violation of the NYCHRL without a good or reasonable basis. 33. Due to the Defendants’ and Defendants’ agents’ and/or employees’ violations of the NYCHRL, Plaintiff is entitled to recover from Defendants compensatory damages, punitive damages, attorneys' fees, and costs and disbursem*nts of this action, pursuant to NYCHRL §8- 502(a). PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully requests that this Court grant the following relief: (a) An award of compensatory damages; (b) An award of punitive damages; (c) An award of costs and expenses associated with this action, together with reasonable attorneys' fees; and, (d) Such other and further relief as this Court determines to be just and proper. Dated: New York, New York August 2, 2021 Respectfully submitted By: Lawrence Spasojevich, Esq. 5 5 of 7 FILED: NEW YORK COUNTY CLERK 08/03/2021 03:55 PM INDEX NO. 152309/2021 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/03/2021 VERIFICATION Lawrence Spasojevich, Esq.: I am the attorney for the Plaintiff in the action herein; I have read the forgoing Complaint and know the content thereof; and that same is true upon information and belief. I make this verification because Plaintiff does not reside in the county where my office is maintained. DATED: New York, New York August 2, 2021 _______________________ Lawrence Spasojevich, Esq. 6 6 of 7 FILED: NEW YORK COUNTY CLERK 08/03/2021 03:55 PM INDEX NO. 152309/2021 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/03/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----------------------------------------------------------------------X MARUCA VARGAS, Index No.: 152309/2021 Plaintiff, -against- CITY OF NEW YORK and THE ADMINISTRATION FOR CHILDREN’S SERVICES Defendants. ----------------------------------------------------------------------X COMPLAINT Aidala, Bertuna & Kamins P.C. ____________________________ By: Lawrence Spasojevich, Esq. Of Counsel 546 5th Avenue New York, New York 10036 Tele: (212) 486-0011 Email: ls@aidalalaw.com Compliance Pursuant to 22NYCRR 130-1.1 Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts of New York State, certifies that, upon information and belief and reasonable inquiry, the contentions contained in the annexed document are not frivolous. 7 7 of 7
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Knox vs. Mohamud, et al.
Aug 22, 2024 |23CV-0202275
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Janet Mlynar vs California Earthquake Authority, et al
Aug 19, 2024 |19CV03844
19CV03844MLYNAR v. CALIFORNIA EARTHQUAKE AUTHORITY et al PLAINTIFF’S MOTION FOR PROTECTIVE ORDER Plaintiff’s motion for a protective order is denied. “Where a party must resort to thecourts, ‘the burden is on the party seeking the protective order to show good cause for whateverorder is sought.’ [Citation.]” (Nativi v. Deutsche Bank National Trust Co. (2016) 223Cal.App.4th 261, 318.) Plaintiff has not demonstrated good cause for a protective order to haltthe deposition of David Bonowitz. I. BACKGROUND AND MOTION This case stems from the 2014 Napa earthquake. Plaintiff Janet Mlynar’s (“Mlynar”)home was insured for earthquake damage by CEA and CSAA. CEA issued a homeowner’spolicy to Mlynar thought its participating insurer, CSAA. After the earthquake, Mlynarsubmitted an earthquake claim under the CEA policy. Defendant Ronald Cook is an attorneyretained by CSAA to assist regarding the earthquake claim. The claim, for a variety of contestedreasons, was not resolved right away but instead there were numerous inspections regarding thescope and extent of the alleged damage to the home. Checks were issued to Mlynar but nevernegotiated by her, and again, the reasons why are in dispute. The claim also went through anappraisal process. In March 2023, defendant CEA subpoenaed certain documents of Mr. Bonowitz, astructural engineer who was previously hired by Mlynar in 2016; a copy of the subpoena wasserved on plaintiff’s counsel. Mr. Bonowitz produced the documents requested. Mlynar did notobject. (Dec. of Amato ¶ 3.) CEA then noticed his deposition, serving the notice on April 24,2024. Mlynar did not object. (Dec. of Amato at ¶ 5, Ex. 4.) The deposition began on May 10,2024, and lasted about an hour before Mr. Dobrin, Mlynar’s counsel, halted the deposition,stating Mlynar’s former counsel, Mr. Greenburg, may have intended Mr. Bonowitz to beconsidered a retained expert and that his [Mr. Bonowitz’s] prior work on the case was part ofconfidential settlement negotiations. He indicated his intention to move for a protective order.Mlynar filed this motion on July 18, 2024. Mlynar moves for a protective order pursuant to Code of Civil Procedure section2025.420, subd. (a)-(b), seeking an order that the deposition of Mr. Bonowitz, not take placeunless Mlynar discloses him as an expert witness for trial. Mlynar asserts a protective order is Page 1 of 6necessary to protect her from “unwarranted annoyance”, “oppression”, or “undue burden”. Shecontends Mr. Bonowitz was her expert consultant for the sole purpose of confidential settlementcommunications with CEA and CSAA. According to Mlynar, during the claim’s adjustmentprocess, the parties’ experts attempted to agree upon a “repair protocol” so that she could receiveCEA funds to start repairs on her home. The parties could not reach an agreement and proceededthrough the JAMS appraisal process. Mr. Dobrin attaches the following in support of Mlynar’s motion, along with requests forjudicial notice: • Exhibit A is an 11/22/16 email from Mr. Greenburg to defendant Cook which states “Confidential Settlement Communication” and enclosed Mr. Bonowitz’s schematic for removal of plaster walls at the property. • Exhibit B is a recent email chain concerning the deposition of Mr. Bonowitz. • Exhibit C is an email dated 9/26/17, with the subject line “Confidential Settlement Communication.” • Exhibit D are two emails dated 10/4/17 between defendant Cook and Greenburg with the subject line “Confidential Settlement Communication.” • Exhibit E is an email dated 8/8/18 from Mr. Greenburg to CSAA adjustor Vicki Miller with the subject line “Confidential Settlement Communication”, attaching Mlynar’s contractor/architect’s [Avelar] repair estimate and scope of work. • Exhibit F is a partial copy of the subpoena served on Mr. Bonowitz in 2023 by CEA. • Exhibit G is a letter dated 8/7/18 from Mr. Greenburg to CSAA. II. OPPOSITION BY CEA The opposition sets out four arguments: (1) Mr. Bonowitz was Mlynar’s engineeringconsultant during the presentation of the earthquake claim – not during the lawsuit and he wasnot retained in anticipation of the appraisal proceeding; (2) Mr. Bonowitz’s testimony is notrelated to a settlement offer or demand. He is expected to confirm his 2018 writing in which headvised Mlynar there was no structural damage to her property due to the earthquake; (3) theresults of Mr. Bonowitz’s destructive testing of the framing beneath the plaster walls at Mlynar’sproperty was intended to be shared with CSAA, which was adjusting the claim; and (4) to theextent there was an attorney-work product protection of Mr. Bonowitz’s testimony, Mlynarwaived such protections when her attorneys did not object to the production of his entire file inresponse to a subpoena. III. DISCUSSION Page 2 of 6 Code of Civil Procedure section 2025.420, subdivision (a) states, “[b]efore, during, orafter a deposition, any party, any deponent, or any other affected natural person or organizationmay promptly move for a protective order. The motion shall be accompanied by a meet andconfer declaration under Section 2016.040.” Subdivision (b) states, in part, “[t]he court, for goodcause shown, may make any order that justice requires to protect any party, deponent, or othernatural person or organization from unwarranted annoyance, embarrassment, or oppression, orundue burden and expense.” California Evidence Code section 1152, Admissibility of Evidence subdivision (a) states,in part, that “[e]vidence that a person has, in compromise or from humanitarian motives,furnished or offered or promised to furnish money or any other thing, act, or service to anotherwho has sustained or will sustain or claims that he or she has sustained or will sustain loss ordamage, as well as any conduct or statements made in negotiation thereof, is inadmissible toprove his or her liability for the loss or damage or any part of it.” First, the emails referenced by Mlynar, though titled “Confidential SettlementCommunications” do not appear to include any specific offers to settle her claim. Second, CEApoints out that this section of the Evidence Code pertains to the admissibility of evidence, anddoes not reference limiting the scope of a deposition. Mlynar has not provided a basis for herassertion that Evidence Code section 1152 insulates the deposition testimony of a third-partywitness. Further, even assuming any protections existed for Mr. Bonowitz’s work and testimony,there have been multiple instances of waiver. “[T]he attorney work product privilege is subject tothe same waiver principles applied to the attorney-client privilege. ‘Waiver of work productprotection, though not expressly defined by statute, is generally found under the same set ofcirc*mstances as waiver of the attorney-client privilege—by failing to assert the protection, bytendering certain issues, and by conduct inconsistent with claiming the protection. Waiveralso occurs by an attorney's voluntary disclosure or consent to disclosure of the writing to aperson other than the client who has no interest in maintaining the confidentiality of the contentsof the writing.’[Citations.] Thus disclosure to a third party will waive the work product privilegeunless the disclosure was coerced.” (Regents of University of California v. Superior Court (2008)165 Cal. App. 4th 672, 678-679.) (Emphasis added.) In March 2023, CEA subpoenaed Mr. Bonowitz’s files related to his work at Mlynar’sproperty and a copy of the subpoena was served on her counsel. Mr. Bonowitz produced thedocuments requested. Mlynar did not object. (Dec. of Amato ¶ 3.) His deposition was noticed forApril 24, 2024, with all counsel, including Mlynar’s attorney, copied and again, Mlynar did notobject. (Dec. of Amato at ¶ 5, Ex. 4.) Finally, Mr. Bonowitz’s site visit notes were already Page 3 of 6disseminated as exhibits to a deposition of plaintiff’s contractor and as an exhibit to CEA’smotion for summary judgment. The motion is denied. The court declines to award sanctions. PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE FILED 7/18/24 1. Order on Motion for Summary Judgment in this case. Denied. The court need not take judicial notice of records in its own case file. 2. Declaration of Janet Mlynar in support of her Responses to Separate Statement of Undisputed Material Facts of Defendants CSAA Insurance Exchange and California Earthquake Authority in Support of their Motions for Summary Judgment and/or Adjudication. Denied. The court need not take judicial notice of records in its own case file. 3. Declaration of Jon-Marc Dobrin in Support of Plaintiff’s Responses to Separate Statement of Undisputed Material Facts of Defendants CSAA Insurance Exchange and California Earthquake Authority in Support of their Motions for Summary Judgment and/or Adjudication. Denied. The court need not take judicial notice of records in its own case file. 4. Plaintiff Janet Mlynar’s Response to Undisputed Material Facts of Defendants CSAA Insurance Exchange and California Earthquake Authority in Support of their Motions for Summary Judgment and/or Adjudication. Denied. The court need not take judicial notice of records in its own case file. PLAINTIFF JANET MLYNAR’S ADDENDUM TO REQUEST FOR JUDICIAL NOTICE FILED 7/30/24 Ex. UU Redacted emails and report of defendants’ appraiser, Thad Eaton. Denied. PLAINTIFF JANET MLYNAR’S SECOND ADDENDUM REQUEST FOR JUDICIAL NOTICE FILED 8/9/24 Ex. A copies of CSAA’s claim file produced in this action regarding CSAA’s redacted communications with its contractors Shaun Piazza and its engineer Peter Shandlin and the “Confidential Settlement Communication” from Mlynar’s attorney Greenburg with CSAA adjustor Vikki Miller. Denied.Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal orderincorporating, verbatim, the language of any tentative ruling – or attaching and incorporating thetentative by reference - or an order consistent with the announced ruling of the Court, inaccordance with California Rule of Court 3.1312. Such proposed order is required even if the Page 4 of 6prevailing party submitted a proposed order prior to the hearing (unless the tentative issimply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition ofsanctions following an order to show cause hearing, if a proposed order is not timely filed.
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Aug 14, 2024 |C22-01974
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